OSHIYAR SINGH Vs. KRISHNA SINGH

JUDGEMENT

(1.) Heard Mr. Chandra Kant, learned counsel for the petitioner and Mr. Md. Waliur Rahman, learned counsel for the respondents.

(2.) The petitioner is aggrieved by the order dtd. 30/1/2018 passed in Execution Case No. 5 / 2017 whereby the learned Executing Court has allowed the petition filed by the respondents under Order 21 Rule 97 of the CPC and has directed the decree holder to delete the plots from the Execution Case No. 5 of 2017 upon which delivery of possession has already been taken place in another suit filed by the respondents bearing Partition Suit No. 394 of 2005.

(3.) A preliminary objection has been raised by learned counsel appearing for the respondents that this civil miscellaneous application is not maintainable inasmuch as per Order 21 Rule 103 of the CPC the order passed by the Executing Court in exercise of its jurisdiction under Order 21 Rule 97 and 99 of the CPC is a deemed decree and as such appeal will lie. Learned counsel in support of his argument has relied upon Full Bench judgment of the Andhra Pradesh High Court reported in AIR 2005 AP 95 Gurram Seetharam Reddy Versus Smt. Gunti Yashoda and Anr. in which the Hon'ble Court has held that the order passed under Order 21 Rule 97 and 99 are appealable.